If parties are married to one another and one party becomes pregnant through the procedure of artificial insemination then for purposes of New York Divorce Law, in most instances the child born of this marriage is the legitimate child of both parties to the marriage.

This law as to artificial insemination is in concert with New York law and the notion that any child born during a marriage is deemed the legitimate offspring of both parents.

In cases of artificial insemination a child born through artificial insemination that is performed by a medical doctor is deemed the child of both husband and wife so long as the doctor has the written consent of wife and husband and the written consent must be executed by not only the parties but also the doctor performing said insemination. The typical example is when an infertile husband consents to allowing his wife to be artificially inseminated because he consented to the procreation during the course of his marriage and should be estopped from denying parentage.

Some of the legal issues that arise in cases involving artificial insemination are the storage of the egg, the custody issues surrounding the birth from an egg, the inheritance rights and various other parentage issues concerning donors of the egg and sperm. It is important to note that he laws surrounding this area of law are different depending on the State where you bring the action.

In New York the Supreme Court ruled that a child born of a same sex marriage is the legitimate child of the marriage and that a sperm donor has no rights to the child. This is because under NY DRL Section 73 any child born in the manner described above is the legitimate child of both parents and that presumption may not be rebutted in court so long as the procedure is performed by a doctor.

Recently however, a case was decided in the Second Department that held that if an insemination is not done by an authorized doctor the presumption could be challenged in a court of law.

If you are planning to undergo a procedure of artificial insemination in New York it is important to seek legal advice because said consent has serious legal consequences into the future, such as presumptions of custody and child support.